I wish I could just submit that clip to the next judge who even considers granting one. Just hold up a chromebook with that on it, play it, drop it on the floor, and walk out.

Dudeists have known this since 1998, and even most Dudeists were a bit late to the party.

I suppose that should not complain about misguided souls trying to get prior restraints.

If they stopped, I might actually have to find a less enjoyable way to make a living than being able to stand there with my arm around the Constitution, channelling Walter Sobchak. There is not much more career-choice-affirming than that.

Nevertheless, one after the other, they keep on coming — defamation plaintiffs who think that they’ve found the magic bullet that gets them a prior restraint. Hell, sometimes they even convince judges to grant them – which is even more awesome, because it then gets me a chance to get an appellate decision slapping it down.

In fact, I secretly hope that I will lose every prior restraint argument before the trial court. In 99% of those cases, the judge should look at the plaintiff and say “are you out of your fucking mind? Your motion is denied. THE SUPREME COURT HAS ROUNDLY REJECTED PRIOR RESTRAINT!”

Well what fun is that? I guess it would be fun as all hell if the judge actually did that.

But, when they get slapped down for being dumb, it helps get the word around to other judges who haven’t heard about this new thing called The First Amendment. I Each time a judge gets reversed for granting a prior restraint – which is exactly every fucking time unless the speech is about secret troop movements, it could help the next dumbass who managed to get elected to the bench. It could also help lawyers with this other new thing called “client control.”

I, myself, represent an occasional defamation plaintiff or two. Plaintiff’s side cases can be fun. But, they always start with the discussion about prior restraint.

The conversation that goes sorta like this:

Client: “I want a preliminary injunction in my defamation case.”

Me: “Wrong country, dude.”

Client: “Come on, at least try”

Me: “FOR YOUR INFORMATION, THE SUPREME COURT HAS ROUNDLY REJECTED PRIOR RESTRAINT! So, no. No. No. No. I’m not even gonna fucking try. You know why? Because it is stupid. Stupid. Stupid. Stupid. I may not be the smartest lawyer in the world, but I’m not stupid enough to seek a prior restraint. You want an injunction, go hire another lawyer who is willing to look like an idiot and waste your money. After he gets his ass handed to him, come back and I’ll handle your case competently, not like the fuckwit that you finally arrive at after you get to the bottom of the barrel, and then dig your way through the wood to the other fucking side of the barrel, now shut the fuck up about an injunction or get out of my fucking office and take your retainer check with you!

MARK IT ZERO!”

Client: “Ok, ok… just take it easy, man.”

Me: “I’m perfectly calm, dude.”

Client: “Just take it easy.”

Me: “Calmer than you are.”

Now on the other hand, when I get a defense case where there is a prior restraint? Then I get all happy. The first draft of my opposition inevitably has the Walter Sobchak quote in it. But, it always gets taken out. Citing to a fictional character just doesn’t seem like the right call when you’re making a serious point.

The U.S. Supreme Court has long recognized that “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.” … This cornerstone of First Amendment protections has been reaffirmed time and again by the Supreme Court, this Court, Texas courts of appeals, legal treatises, and even popular culture(7). (citations and other footnotes omitted)

And that “7” brings us to this… get a handkerchief, because you’re gonna weep.

Now, of course, The Big Lehrmann (as she shall now be known) can get away with citing it that way. But, I can’t see a trial court in Muskegon, Des Moines, or even Los Angeleez going for that. But, The Big Lehrmann now gives us the respectability and acceptance that Constantine once gave to the early Christians.

So now, I’ll tell you how to cite this. And before you trot out the bluebook, fuck the bluebook.

The next time you are arguing against a prior restraint, this is how you cite to the wisdom of Sobchak:

This is not a Star Trek order. There are no pithy jokes here. There is, however, a shocking exposé of just how insidious the government can be in coercing silence when you speak out against outdated, incorrect, and even dangerous “conventional wisdom.”

Steve Cooksey ran a blog advocating a low-carbohydrate, high-protein diet. This diet and its permutations are generally known as known as a “paleo,” “primal” or “caveman” diet, and is based on eliminating historically recent additions to the human diet, such as processed grains. This more or less inverts the USDA’s food pyramid (or triangle, depending on what generation you are), putting meat at the base of the pyramid with rough, leafy greens, and treating carbohydrate-laden foods like bread as less important. Like anything people feel strongly about, the ambassadors of the paleo diet can be abrasive and annoying. But, it works.

Cooksey’s backstory is remarkable, but surprisingly common among health advocates. A Type II (adult-onset) diabetic, Cooksey was rushed to a hospital on the verge of a coma in 2009. His dietitians advised him to eat a diet high in carbohydrates. Cooksey, however, investigated matters himself and arrived at a diet high in protein and low in carbohydrates. His blood sugar normalized and he was able to stop using insulin. With a combination of diet and exercise (rather than, say, “fat acceptance”), Cooksey lost 78 pounds and felt better than ever before.

Paying it forward, Cooksey opened his blog, diabetes-warrior.net, in early 2010. Cooksey used the blog to talk about his diet and lifestyle changes. He even included a disclaimer that he was not a licensed medical profession and had no medical qualifications – similar to how legal bloggers are quick to reminder readers that nothing they say online is legal advice. The overarching theme of Cooksey’s blog was that high-carbohydrate diets caused more diabetes. During the months of December 2011 and January 2012, Cooksey’s blog had 20,000 unique visitors.

Then Cooksey made the mistake all new red-pill types do: He explained his views to a weak and deliberately helpless public. In July 2012, Cooksey attended a nutritional seminar for diabetics. The seminar’s speaker advocated a high-carbohydrate diet for diabetics; Cooksey responded by advocating a low-carbohydrate diet instead. An attendee at the seminar was so “””offended””” that he or she reported Cooksey to the North Carolina Board for Dietetics/Nutrition (the “Board”), claiming Cooksey’s advocacy was actually the unlicensed practice of dietetics. Under North Carolina law governing dietetics, only licensed dietitians may provide nutrition care services, which have a broad definition that includes:

a. Assessing the nutritional needs of individuals and groups, and determining resources and constraints in the practice setting.
b. Establishing priorities, goals, and objectives that meet nutritional needs and are consistent with available resources and constraints.
c. Providing nutrition counseling in health and disease.
d. Developing, implementing, and managing nutrition care systems.
e. Evaluating, making changes in, and maintaining appropriate standards of quality in food and nutrition services.

Under North Carolina law, each and every act of unlicensed practice of dietetics is a separate misdemeanor.

The Board contacted Cooksey. It told him that he would need to change his website. It also told him that it was statutorily entitled to get an injunction against him. Cooksey, fearing civil action, reluctantly complied with the Board’s initial demands to change his website, removing parts that might have been considered “advice” to visitors.

The Board told Cooksey it would review his website and tell him what he could and couldn’t say without a dietitian’s license. After reviewing Cooksey’s site, the Board got back to him with pages and pages of comments. The Board’s message was clear: Fix it – or else. Again, Cooksey acquiesced – this time in fear of civil and even criminal penalties. Despite not communicating with the Board, it nevertheless sent Cooksey a letter, noting that he had made the requested changes, and tacitly warning Cooksey that it would “continue to monitor the situation.”

After receiving this letter, Cooksey filed suit under 42 U.S.C. § 1983 for the Board’s actions chilling his First Amendment protected speech. He also sought a declaratory judgment that North Carolina’s statutes were unconstitutional both facially and as-applied. The Board moved to dismiss under Fed. R. Civ. P. 12(b)(1) for lack of standing and lack of ripeness, and 12(b)(6) for failure to state a claim. The district court granted the motion, holding that “voluntarily removing parts of one’s website in response to an inquiry from a state licensing board is not a sufficient injury to invoke Article III standing.” The court also found that Cooksey was not subject to actual or imminent enforcement of the Board’s draconian laws.

At first blush, it seems that the district court took an unusually charitable view toward the Board’s actions. Many who read this blog would disagree with the outcome. Cooksey disagreed. And so, too, did the United States Court of Appeals for the Fourth Circuit.

The Fourth Circuit’s panel – which included former United States Supreme Court Justice Sandra Day O’Connor sitting by designation – reviewed the dismissal de novo, or anew (conducting a new, independent analysis of the facts that were before the district court). The Court of Appeals embarked on an analysis of justiciability with two old law school (and in one case, law practice) favorites, standing and ripeness. The analysis is considerable, going on for many pages. Some highlights are excerpted below:

On the question of standing:

In First Amendment cases, the injury-in-fact element is commonly satisfied by a sufficient showing of “self-censorship, which occurs when a claimant is chilled from exercising h[is] right to free expression.” Benham v. City of Charlotte, 635 F.3d 129, 135 (4th Cir. 2011) (internal quotation marks omitted).

However, this anticipated cannot just be speculative or the fruit of conjecture. The appeals court quickly outlined how Cooksey’s case allowed him to have standing, largely due to the Board’s aggression:

In the present case, we not only have evidence of specific and — unlike NCRL — unsolicited written and oral correspondence from the State Board explaining that Cooksey’s speech violates the Act, but we also have a plaintiff who stopped engaging in speech because of such correspondence, and an explicit warning from the State Board that it will continue to monitor the plaintiff’s speech in the future. See J.A. 18 (Compl. ¶ 63-64) (Burill told Cooksey “that he and his website were under investigation” and that the State Board “does have the statutory authority to seek an injunction to prevent the unlicensed practice of dietetics.”); id. at 39 (red-pen review) (“You should not be addressing diabetic’s specific questions. You are no longer just providing information when you do this, you are assessing and counseling, both of which require a license.”); id. at 66 (Burill email) (“[W]e would ask that you make any necessary changes to your site, and moreover, going forward, align your practices with the guidance provided.”); id. at 105 (Burill letter) (“[T]he Board reserves the right to continue to monitor this situation.”). Therefore, we have no trouble deciding that Cooksey’s speech was sufficiently chilled by the actions of the State Board to show a First Amendment injury-in-fact.

The Board’s aggression was also helpful to Cooksey in showing a credible threat of prosecution. From there, his complaint easily satisfied the requirements of causation – that his injury was caused by the conduct he complained of – and redressibility, which requires a non-speculative likelihood that his injury would be redressed by a favorable judicial decision.

Unfortunately, the opinion gave some daylight to the Board’s position. If the laws the Board enforces are professional regulations that do not abridge the First Amendment, such as certain limited limitations placed on attorney speech by state professional conduct rules, then Cooksey may ultimately not prevail. However, because that is question of the case’s merits – how the facts and the law mesh in court – rather than one of standing, or Cooksey’s ability to bring his claim to Court in the first place, this potential defense cannot keep Cooksey out of court (for now).

As for ripeness:

Much like standing, ripeness requirements are also relaxed in First Amendment cases. See New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1500 (10th Cir. 1995) (“The primary reasons for relaxing the ripeness analysis in th[e] [First Amendment] context is the chilling effect that potentially unconstitutional burdens on free speech may occasion[.]”). Indeed, “First Amendment rights . . . are particularly apt to be found ripe for immediate protection, because of the fear of irretrievable loss. In a wide variety of settings, courts have found First Amendment claims ripe, often commenting directly on the special need to protect against any inhibiting chill.” Id. (internal quotation marks omitted).

The Court then gave the Board a little more abuse for soiling its own bed.

In the same way, Cooksey’s claims present the question of whether the Act and actions of the State Board unconstitutionally infringe on Cooksey’s rights to maintain certain aspects of his website. No further action from the Board is needed: it has already, through its executive director, manifested its views that the Act applies to Cooksey’s website, and that he was required to change it in accordance with the red-pen review or face penalties.

In its conclusion, the court of appeals vacated the district court’s order dismissing Cooksey’s complaint and remanded the case for a proceeding on the merits. The Board can always ask the Fourth Circuit to stay its mandate and grovel with thousands of others to be the 1% whose cert petition the Supreme Court grants. If nothing else, it will buy them time. Hopefully, this opinion will leave a mark on the Board and make abusive government entities everywhere think twice before making any “suggestions” to the lowly citizenry they benevolently manage. Specifically for the Board, its bad dream just got another life, Freddy Krueger-style.

A closing thought: North Carolina does not have an Anti-SLAPP law – not even a mediocre one that could be made good, like Nevada’s (which, starting October 1, 2013, gets a nice octane boost). While § 1983 claims allow prevailing non-governmental parties to seek their attorneys’ fees under § 1988(b), those fees are discretionary, while prevailing Anti-SLAPP fees are mandatory – and more expeditiously awarded. While state law-based Anti-SLAPP laws do not always work as drafted in federal court, there is a serious question whether such a statute’s existence or use would have led to a different outcome without an appeal – or any litigation at all.

One more time, with feeling! — FOR YOUR INFORMATION, THE SUPREME COURT HAS ROUNDLY REJECTED PRIOR RESTRAINT!!!!!

The National Judicial College should require every judge that attends to watch The Big Lebowski. Further, every state should require a person to view it before they can assume the powers of a judge. It would result in a lot less unconstitutional orders from judges who seem to not know any better when it comes to issuing prior restraint orders.

Even if you watch The Big Lebowski, you will be infected with a bit of Dudeism, which will never hurt when you are trying to judge cases.

But, more to the point of this post, if you don’t know the first thing about prior restraint, even if you never heard of Near v. Minnesota, you’d still maybe have a little intellectual curiosity about that statement, right?

As some of you remember, Raanan Katz sued Google and others for copyright infringement this summer over a Blogger user’s publication of an “unflattering” photograph of him. Today, popular sports blog Deadspin has the story.

Beyond the copyright suit, the Deadspin piece goes on to discuss a Florida trial court’s order in separate, concurrent litigation that Katz has brought against the same defendant as his copyright suit.

This is a very complicated case. You know a lot of ins, a lot of outs, a lot of what-have-yous, but in particular, Deadspin addresses a decision by Florida’s 11th Judicial Circuit enjoining the defendant from writing further about Katz, since what the Defendant has written thus far is “arguably defamatory.” (source.)

The New Jersey Supreme Court recently struck down a homeowners association rule that prohibited the posting of political signs in a homeowner’s unit. (Full text here). The court reasoned that the HOA’s complete ban of political signage violated the free speech clause of the New Jersey Constitution, which “affirmatively guarantees the right of free speech to all citizens.”

Defendant Wasim Khan lives in and owns a townhome in a common interest community managed by Mazadabrook Commons HOA. Kahn ran for a position on the local town council and posted two signs on his house advertising his candidacy: one in his window and the other on the inside of his door. Mazdabrook informed Khan that his display of these signs was in violation of the CC&R’s, ordered him to remove them, and sent him a fine for the violation. Mazdabrook’s regulations prohibited all signs except “For Sale” signs on residential property.

Upon move in, Mazdabrook homeowners receive a number of different documents. The documents submitted for court review were the Public Offering Statement (POS), Declaration of Covenants and Restrictions (Declaration), and the Association’s Rules and Regulations. The POS expressly prohibits the erection of signs, except for one “For Sale” or “For Rent” signs. The Declaration and Rules and Regulations, however, do not prohibit the posting of all signs. Instead, the documents state that the board must give prior written approval prior to the sign’s placement.

New Jersey’s Constitution provides broader protection than the First Amendment of the U.S. Constitution, and the court stated that in order to trigger the protections of a state law, interpreting a broader constitutional right does not require a state action. Therefore, the court applied New Jersey’s free speech protections, not the U.S. Constitution’s, to the issue. The court stated that political speech lies “at the core” of New Jersey’s free speech protections, and therefore receives even greater scrutiny.

In analyzing whether an HOA’s restriction violates free speech rights, the New Jersey court used a three-prong test laid out in State v. Schmid, 84 N.J. 535, 563 (1980), appeal dismissed sub nom, Princeton Univ. Schmid, 455 U.S. 100, 102 S. Ct. 867, 70 L. ed. 2d 855 (1982). When applied in the homeowners association setting, the test analyzes: 1) whether the primary use of the property is residential, 2) whether the association had not invited the public to use the property, and 3) whether fairness considerations weighed in favor of the restriction and against the defendant’s expressional activity. However, the court stated that the first two factors do not weigh as heavily in this case because Khan was not a mere visitor, but an owner of the property. Therefore, the court considered the third prong more heavily in its analysis.

The court found that an almost complete ban on residential signs, which includes political signs, is not a “minor restriction” to Khan. Rather, it restricts his most basic rights as a political candidate and of the political process itself. Conversely, the interference with the Association’s property is minimal—the signs were located in Khan’s window and door, where people passing by could view them and make their own analyses. While the HOA has the right to adopt reasonable time, place, and manner restrictions on the signs, the court said, it cannot impose a total ban on them.

Furthermore, the court determined that Khan did not waive his constitutional right to free speech because he purchased the home with full knowledge of the restrictions. Because the alleged waiver of Khan’s free speech rights was not clear, he did not waive his rights by accepting the terms in the documents. Instead, he was asked, in three different ways, to waive the right to post signs without board approval, but was not expressly told the rules that would govern the process of approval. Therefore, this was not a knowing waiver of constitutional rights.

Recently, we analyzed a similar rule contained in HOA documents for a Nevada HOA. Similar to Mazdabrook, the HOA documents also contained conflicting language about political signage, with the controlling rules banning all signs but “For Sale” and “For Rent” signs. Another document stated that in order to post any other kind of sign, the homeowner would first need to get permission from the HOA’s design committee.

No caselaw on this particular issue exists in Nevada. However, Nevada Revised Statutes 116.325 states that common interest communities may not prohibit unit occupants from displaying political signs, but can place reasonable restrictions on things such as size:

Right of units’ owners to exhibit political signs in certain areas; conditions and limitations on exercise of right.

1. The executive board shall not and the governing documents must not prohibit a unit’s owner or an occupant of a unit from exhibiting one or more political signs within such physical portion of the common-interest community as that owner or occupant has a right to occupy and use exclusively, subject to the following conditions:

(a) All political signs exhibited must not be larger than 24 inches by 36 inches.

(b) If the unit is occupied by a tenant, the unit’s owner may not exhibit any political sign unless the tenant consents, in writing, to the exhibition of the political sign.

(c) All political signs exhibited are subject to any applicable provisions of law governing the posting of political signs.

(d) A unit’s owner or an occupant of a unit may exhibit as many political signs as desired, but may not exhibit more than one political sign for each candidate, political party or ballot question.

2. The provisions of this section establish the minimum rights of a unit’s owner or an occupant of a unit to exhibit political signs. The provisions of this section do not preempt any provisions of the governing documents that provide greater rights and do not require the governing documents or the executive board to impose any restrictions on the exhibition of political signs other than those established by other provisions of law.

3. As used in this section, “political sign” means a sign that expresses support for or opposition to a candidate, political party or ballot question in any federal, state or local election or any election of an association.

Yet even in the absence of NRS 116.325, prior restraints on speech are generally considered unconstitutional, and such protections could be extended to homeowners. The New Jersey Supreme Court did not need to address the state actor issue of HOAs because it relied entirely on the state constitution in its reasoning. Obviously, homeowners associations are not considered to be state actors, and are generally not bound by Constitutional considerations. However, as soon as a homeowners association attempts to enforce its CC&Rs, a state action is triggered, and the First Amendment will kick in.

The seminal case on the matter of HOAs infringing on homeowners’ fundamental rights is Shelley v. Kraemer, 334 U.S. 1 (1948). In that case, the Supreme Court held that a state court’s enforcement of a racially restrictive covenant constituted sufficient action by the state to satisfy the Fourteenth Amendment’s “state action” requirement. Racially restrictive covenants, like covenants that restrict free speech, infringe on a fundamental right. “Enforcement of private agreements by the judicial branch of government is state action for purposes of the Fourteenth Amendment, as the Highest Court in the land declared it to be in Shelley.” Gerber v. Longboat Harbour North Condominium, Inc., 724 F. Supp. 884, 887 (M.D. Fla. 1989), vacated in part on other grounds by 757 F. Supp. 1339 (M.D. Fla. 1991).

Of, course there is no state action inherent in the mere possibility of state court enforcement of an HOA rule. See Quail Creek Property Owners Association, Inc. v. Hunter, 538 So.2d 1288 (Fla. 2d DCA 1989) (unenforced rule prohibiting homeowners from posting signs did not trigger state action). Therefore, if an HOA simply has the rule in its documents, no cause of action exists. However, once an HOA crosses the line from prospective enforcement to actual enforcement with any actual legal penalties, the legal landscape changes. See Gerber, 724 F. Supp. at 887, 724 F. Supp. 884, 887 (M.D. Fla. 1989, (holding unconstitutional a condominium rule prohibiting residents from flying the American flag except on specified holidays). Therefore, a homeowner would not be able to make a claim against an HOA without enforcement of the rule. This is exactly what happened in the New Jersey case—the HOA fined the defendant for posting his political signs, and the defendant was able to sue.

The New Jersey ruling applied specifically to political signs, and did not extend to other forms of home decoration. The defendant in Mazdabrook was no stranger to litigation against the homeowners association—three years ago, he also filed a complaint against the homeowners association when he was fined for planting a climbing rose vine on his property. In that case, the court determined that this restriction did not abridge free speech and ordered Khan to pay the HOA fines.

A professor at University of Wiconsin – Stout, put up a poster from the sci fi series, Firefly. The poster had some macho shit on it about where and when the character would kill one of his enemies. Some worthless fuckhead in the school’s administration (Lisa Walter, the chief of police) lost her shit, and hadthe cops come tear down the poster.

Miller was contacted by Lisa Walter, the chief of police/director of parking services, and informed that “it is unacceptable to have postings such as this that refer to killing.” She also warned the astounded professor that any future such posts would be removed and would cause him to be charged with disorderly conduct. (source)

So the professor put up this poster in its place:

And so Chief Walter said “ok, point taken,” and gave the professor back his original poster, and everyone learned a nice lesson about the First Amendment.

NAH, Just kidding.

Chief Walter decided that disobedience of her authoritah would not be tolerated, so she sent cops back to the professor’s classroom to tear down that poster too.

with Chief Walter claiming this time that the problem was that the poster “depicts violence and mentions violence or death.” She went on to say that “it is believed that this posting also has a reasonable expectation that it will cause a material and/or substantial disruption of school activities and/or be constituted as a threat.” Seriously. (source)

On Good Morning America, Breyer compares burning a Koran to shouting “Fire!” in a crowded theater. I guess this must mean that if you do anything at all which upsets delusional wackos, you are not protected by the First Amendment. That’s good to know.